The Judgment of the Court was delivered dy
B. L. HANSARIA,J.--Gandhiji once observed:
"Death is our friend, the trust of friends. He delivers us
from agony. I do not want to die of a creeping paralyis of
my faculties-- a defeated man".

401

The English poet William Ernest Henley wrote:
"I am the master of my fate, I am the captain of my soul."

2. Despite the above, Hamlet's dilemma of "to be or not to
be" faces many a soul in times of distress, agony and
suffering, when the question asked is "to die or not to
die". If the decision be to die and the same is implemented
to its fructification resulting in death, that is the end of
the matter. The dead is relieved of the agony, pain and
suffering and no evil consequences known to our law follow.
But if the person concerned be unfortunate to survive, the
attempt to commit suicide may see him behind bars, as the
same is punishable under Section 309 of our Penal Code.

3. The two petitions at hand have assailed the validity of
Section 309 by contending that the same is violative of
Articles 14 and 21 of the Constitution and the prayer is to
declare the section void. The additional prayer in Writ
Petition (Crl.) No. 419 of 1987 is to quash the proceedings
initiated against the petitioner (Nagbhusan) under Section

309.

4. The judiciary of this country had occasion to deal with
the aforesaid aspect; and we have three reported decisions
of the three High Courts of the country, namely, Delhi,
Bombay and Andhra Pradesh on the aforesaid question. There
is also an unreported decision of the Delhi High Court. It
would be appropriate and profitable to note at the threshold
what the aforesaid three High Courts have held in this
regard before we apply our mind to the issue at hand.

5. The first in point of time is the decision of a
Division Bench of Delhi High Court in State v. Sanjay Kumar
Bhatial in which the Court was seized with the question as
to whether the investigation of the case under Section 309
should be allowed to continue beyond the period fixed by
Section 368 CRPC. Some loud thinking was done by the Bench
on the rationale of Section 309. Sachar, J., as he then
was, observed for the Bench:

"It is ironic that Section 309 IPC still
continues to be on our Penal Code. ... Strange
paradox that in the age of votaries of
Euthanasia, suicide should be criminally
punishable. Instead of the society hanging
its head in shame that there should be such
social strains that a young man (the hope of
tomorrow) should be driven to suicide
compounds its inadequacy by treating the boy
as a criminal. Instead of sending the young
boy to psychiatric clinic it gleefully sends
him to mingle with criminals.... The
continuance of Section 309 IPC is an
anachronism unworthy of a human society like
ours. Medical clinics for such social misfits
certainly but police and prisons never. The
very idea is revolting. This concept seeks to
meet the challenge of social strains of modem
urban and competitive economy by ruthless
suppression of mere symptoms this attempt can
only result in failure. Need is for humane,
civilised and socially oriented outlook and
penology.... No wonder so long as society
refuses to face this reality its coercive
machinery will
1 1985 Cri LJ 931 :(1985) 2 DMC 153 (Del)
402
invoke the provision like Section 309 IPC
which has no justification to continue to
remain on the statute book."

6. Soon came the Division Bench decision of Bombay High
Court in Maruti Shripati Dubal v. State of Maharashtra2 in
which the Bench speaking through Sawant, J., as he then was,
on being approached for quashing a prosecution launched
against the petitioner under Section 309 of the Penal Code
on the ground of unconstitutionality of the section, took
the view and that the section was ultra vires being
violative of Articles 14 and 21 and was therefore struck
down. We would note the reasons for the view taken later.

7. Close on the heels was the decision of a Division Bench
of Andhra Pradesh High Court in Chenna Jagadeeswar v. State
of A.p.3 in which on the High Court being approached against
the conviction of the appellants under Section 309, inter
alia, on the ground of the section being violative of
Articles 14 and 21 of the Constitution, the Bench held that
the section was valid as it did not offend any of these
articles. The Bombay view was dissented to; the reasons of
which also we shall advert to later.

8. The unreported decision of the Delhi High Court has
been noted in the articles of Shri B.B. Pande, Reader in
Law, University of Delhi, as published in Islamic and
Comparative Law Quarterly [Vol. VII(1), March 1987 at pp.
112 to 120] and of Shri Faizan Mustafa, Lecturer, Department
of Law, Aligarh Muslim University [(1993) 1 SCJ Journal
Section at pp. 36 to 42]. That decision was rendered in a
suo motu proceeding titled as Court on its own Motion v.
Yogesh Sharma4. The decision was rendered by Sachar, C.J.
The Court once again pointed out the futility of creating
criminal liability in suicide cases, but instead of striking
down the section or declaring it invalid, what the learned
Chief Justice did was to quash all the 119 proceedings
pending in the trial courts on the ground that dragging of
the prosecutions for years when the victims have had enough
of misery and the accused also belonged to poorer section
which added further insult to the injury, would be abuse of
the process of the court. Being of this view, each of the
accused was directed to be acquitted.

9. Striking down of the section by the Bombay High Court
has come to be criticised by the aforesaid Shri Pande and
Shri Mustafa, so also by Shri D.C. Pande, Research
Professor, Indian Law Institute, in his article on "Criminal
Law" [of Annual Survey of Indian Law, Vol. 23 (1987) at pp.
260 to 270 of published by the Indian Law Institute]. In
the 'Editorial Note' titled 'Taking One's Life' [(1986-87)
91 CWN (Journal Section) at pp. 37 to 40] the Bombay
decision received some criticism.

10. Before dealing with the points raised in these
writings, it would be worthwhile to note that Shri V.S.
Deshpande after his retirement as Chief Justice of Delhi
High Court had expressed his view on this question in his
1 1987 Cri LJ 743 (1986) 88 Bom LR 589: 1986 Mah LJ 913
(Bom)
3 1988 Cri LJ 549 (1987) 2 Andh LJ 263 : 1987 APLJ (Cri)
110 (AP)
4 Registered as Cri. Revision No. 230 of 1985
403
article titled "To be or not to be" [(1984) 3 SCC (Journal)
at pp. 10 to 15] Shri Deshpande, after referring to what had
been held by this Court regarding the scope of Article 21,
took the view that if Section 309 is restricted in its
application to attempts to commit suicide which are cowardly
and which are unworthy, then only this section would be in
consonance with Article 21, because, if a person having had
no duties to perform to himself or to others when he is
terminally ill, decides to end his life and relieve himself
from the pain of living and the others from the burden of
looking after him, prosecution of such a person would be
adding insult to injury and it was asked : "Should a Court
construe Section 309 IPC to apply to such cases?"

11. Sometime afterwards appeared an article of Justice R.A.
Jahagirdar of Bombay High Court in the Illustrated Weekly of
India (September 29, 1985) in which the learned Judge took
the view that Section 309 was unconstitutional for four
reasons: (1) neither academicians nor jurists are agreed on
what constitutes suicide, much less attempted suicide; (2)
mens rea, without which no offence can be sustained, is not
clearly discernible in such acts; (3) temporary insanity is
the ultimate reason of such acts which is a valid defence
even in homicides; and (4) individuals driven to suicide
require psychiatric care.

12. Apart from the aforesaid judicial and legal thinking on
the subject relating to justification and permissibility of
punishing a man for attempting to commit suicide, there are
proponents of the view that euthanasia (mercykilling) should
be permitted by law. We do not propose to refer to the
thinking on this subject, principally because the same is
beyond the scope of the present petitions and also because
in euthanasia a third person is either actively or passively
involved about whom it may be said that he aids or abets the
killing of another person. We propose to make a distinction
between an attempt of a person to take his life and action
of some others to bring to an end the life of a third
person. Such a distinction can be made on principle and is
conceptually permissible.

13. Though what we propose to decide in these cases would,
therefore, relate to the offence of attempted suicide, it is
nonetheless required to be stated that euthanasia is not
much unrelated to the act of committing suicide inasmuch as
wherever passive euthanasia has been held to be permissible
under the law, one of the requirements insisted upon is
consent of the patient or of his relations in case the
patient be not in a position to give voluntary consent. The
relationship between suicide and euthanasia has come to be
highlighted in a decision of the Supreme Court of Nevada
(one of the States of United States of America) in Mckay v.
Bergstedt5 where a patient filed a petition to the court for
permitting disconnection of his respirator. The district
court, on the facts of the case, granted permission. The
State appealed to the Supreme Court of Nevada which, after
balancing the interest of the patient against the relevant
State interest, affirmed the district court's judgment. The
court took the view that the desire of the patient for
404
withdrawal of his respirator did not tantamount to suicide
the same was rather an exercise of his constitutional and
common law right to discontinue unwanted medical treatment.
This was the view taken by the majority. One of the Judges
expressed a dissenting view.

14. A comment has been made on the aforesaid decision [at
pp. 829 to 838 of Suffolk University Law Review, Vol. 25
(1991)] by stating that the distinction made by the majority
between suicide and euthanasia because of differences in
motive and mental attitude, is not tenable and the
commentator referred to the dissenting opinion in which it
was observed that the patient was in fact requesting the
court to sanction affirmative act which was entirely
consistent with the court's definition of suicide, inasmuch
as the majority had defined suicide as "an act or instance
of taking one's own life voluntarily and intentionally; the
deliberate and intentional destruction of his own life by a
person of years of discretion and of sound mind; one that
commits or attempts his self-murder". (This was indeed the
definition given in Webster's Third New International
Dictionary, 1968.)

15. We may now note the reasons given by the Bombay High
Court in Shripati case2 for striking down the section as
violation of Article 21. These reasons are basically three:
(1) Article 21 has conferred a positive right to live which
carries with it the negative right not to live. In this
connection it has been first stated that the fundamental
rights are to be read together as held in R. C. Cooper v.
Union of India6. Mention was then made of freedom of speech
and expression, as to which it was observed that the same
includes freedom not to speak and to remain silent.
Similarly, about the freedom of business and occupation, it
was stated that it includes freedom not to do business. (2)
Notice was then taken of the various causes which lead
people to commit suicide. These being mental diseases and
imbalances, unbearable physical ailments, affliction by
socially-dreaded diseases, decrepit physical condition
disabling the person from taking normal care of his body and
performing the normal chores, the loss of all senses or of
desire for the pleasures of any of the senses, extremely
cruel or unbearable conditions of life making it painful to
live, a sense of shame or disgrace or a need to defend one's
honour or a sheer loss of interest in life or disenchantment
with it, or a sense of fulfilment of the purpose for which
one was born with nothing more left to do or to be achieved
and a genuine urge to quit the world at the proper moment.
(3) The Bench thereafter stated that in our country
different forms of suicide are known. These being: Johars
(mass suicides or self-immolation) of ladies from the royal
houses to avoid being dishonoured by the enemies; Sati
(self-immolation by the widow on the burning pyre of her
deceased husband); Samadhi (termination of one's life by
self-restraint on breathing); Prayopaveshan (starving unto
death); and Atmarpana (self-sacrifice). It was also
observed that the saints and savants, social, political and
religious leaders have immolated themselves in the past and
do so even today by one method or the other and society has
not only
6 (1970) 2 SCC 298 : AIR 1970 SC 1318
405
not disapproved of the practice but has eulogised and
commemorated the practitioners. It may be pointed out that
the Bench made a distinction between "suicide" and "mercy-
killing"; so also, between suicide and aiding or abetting
the same.

16. The Bombay High Court held Section 309 as violation of
Article 14 also mainly because of two reasons. First, which
act or acts in series of acts will constitute attempt to
suicide, where to draw the line, is not known some attempts
may be serious while others non-serious. It was stated that
in fact philosophers, moralists and sociologists were not
agreed upon what constituted suicide. The want of plausible
definition or even guidelines, made Section 309 arbitrary as
per the learned Judges. Another reason given was that
Section 309 treats all attempts to commit suicide by the
same measure without referring to the circumstances in which
attempts are made.

17. The first of the aforesaid reasons is not sound,
according to us,because whatever differences there may be
as to what constitutes suicide,there is no doubt that
suicide is intentional taking of one's life, as stated at p.
1521 of Encyclopaedia of Crime and Justice, Vol. IV, 1983
Edn. Of course, there still exists difference among suicide
researchers as to what constitutes suicidal behaviour, for
example, whether narcotic addiction, chronic alcoholism,
heavy cigarette smoking, reckless driving, other risk-taking
behaviours are suicidal or not. It may also be that
different methods are adopted for committing suicide, for
example, use of firearms, poisoning especially by drugs,
overdoses, hanging, inhalation of gas. Even so, suicide is
capable of a broad definition, as has been given in the
aforesaid Webster's Dictionary. Further, on a prosecution
being launched it is always open to an accused to take the
plea that his act did not constitute suicide whereupon the
court would decide this aspect also.

18. Insofar as treating of different attempts to commit
suicide by the same measure is concerned, the same also
cannot be regarded as violative of Article 14, inasmuch as
the nature, gravity and extent of attempt may be taken care
of by tailoring the sentence appropriately. It is worth
pointing out that Section 309 has only provided the maximum
sentence which is up to one year. It provides for
imposition of fine only as a punishment. It is this aspect
which weighed with the Division Bench of Andhra Pradesh High
Court in its aforesaid decision to disagree with the Bombay
view by stating that in certain cases even Probation of
Offenders Act can be pressed into service, whose Section 12
enables the court to ensure that no stigma or
disqualification is attached to such a person. (See para 32
of the judgment.)

19. We agree with the view taken by the Andhra Pradesh High
Court as regards Section 309 qua Article 14. But the Bombay
Bench itself was more involved with Article 21 and violation
of it by Section 309, the reasons whereof have been noted.
Whether these are sound and tenable, would be our real
consideration.

20. The Bombay High Court's decision2 led some thinkers to
express their own views. We have noted who they were. The
broad points of their
406
objection/criticism were these: (1) suicide is an act
against religion; (2) it is immoral; (3) it produces adverse
sociological effects; (4) it is against public policy (This
has also been the main argument of the counsel of Union of
India before us.); (5) it damages monopolistic power of the
State, as State alone can take life; and (6) it would
encourage aiding and abetting of suicide and may even lead
to 'constitutional cannibalism'.

21. We shall in due course see whether the aforesaid
objections raised
against the Bombay judgment are valid. Concerned as we
are with the broad contention that Section 309 is violative
of Article 21, we shall first inform ourselves as to the
content and reach of this article and then answer in a
general way as to whether a person residing in India has a
right to die. Section 309 being a part of our enacted law,
we would desire to know what object a law seeks to achieve.
This section having made attempt to commit suicide an
offence, we shall ask the question as to why is a particular
act treated as crime and what acts are so treated. We shall
then apply our mind to the purposeful query as to how a
crime can be prevented. Being seized with the crime of
'attempted suicide', we shall apprise ourselves as to why
suicides are committed and how can they be really prevented.
We would also desire to know what type of persons have been
committing suicides and what had been their motivations. We
would then view the act of committing suicide in the
background of our accepted social ethos. Having done so, we
shall take up the points of criticism noted above one by one
and express our views on the same.

22. Having known that the Law Commission of India had in
its 42nd Report of 1971 recommended deletion of Section 309,
we shall put on record as to why was this recommendation
made and how was the same viewed by the Central Government;
and what steps, if any, were taken by it to implement the
recommendation. What is the present thinking of the Union
of India shall also be taken note of.

23. Finally, we shall open our mental window a little to
allow breeze to come from other parts of the world, inter
alia, because Gurudev (Rabindranath Tagore, the Nobel
Laureate) wanted us to do so. Globalisation has, in any
case, been accepted by us in some other fields of our
activities. We have stated opening of this window "a
little" because we propose to confine ourselves to know
whether attempt to commit suicide is presently a crime only
in two other countries of the globe they being United
Kingdom and United States of America. The reasons for our
selecting these two countries shall be indicated when we
shall advert to our 'global view' query. It may only be
stated here that we are opening the window only a little,
as, the little air that would pass through the little
aperture would be enough, in our view, to enable us to have
broad knowledge of global view on the subject under
consideration.

24. The aforesaid mental odyssey would take us through a
long path before we would reach our destination, our
conclusion. Finale would, however, come after we have
answered or known the following:

407

(1) Has Article 21 any positive content or
is it merely negative in its reach?
(2) Has a person residing in India a right
to die?

(3) Why is a law enacted? What object(s) it
seeks to achieve?

(4) Why is a particular act treated as
crime/What acts are so treated?
(5) How can crimes be prevented?
(6) Why is suicide committed?
(7) Who commits suicide? Secularisation of
suicide.
(8) How suicide-prone persons should be
dealt with?
(9) Is suicide a non-religious act?
(10) Is suicide immoral?

(11) Does suicide produce adverse sociological
effects?

(12) Is suicide against public policy?
(13) Does commission of suicide damage the
monopolistic power of the State to take life?
(14) Is apprehension of 'constitutional
cannibalism' justified?

(15) Recommendation of the Law Commission of
India and follow-up steps taken, if any.
(16) Global view. What is the legal position
in other leading countries of the world
regarding the matter at hand?

25. The aforesaid questions, which have been framed keeping
in mind the information we thought necessary to enable us to
decide the important matter at hand to our satisfaction,
have been listed as above keeping in view their comparative
importance for our purpose the most important being he
first and so on; and we propose to answer them in the same
sequence.

(1) Has Article 21 any positive content or is it merely
negative in its reach?

26. This question is no longer res integra inasmuch as a
Constitution Bench of this Court in Unnikrishnan v. State of
A.p.7 [in which right to receive education up to the primary
stage has been held to be a call of Article 1] has virtually
answered this question. This would be apparent from what
was stated by Mohan, J. in paragraph 19 and by Jeevan Reddy,
J. in paragraph 170. In paragraph 30, Mohan, J. has
mentioned about the rights which have been held to be
covered under Article 21. These being:

(6) The right to speedy trial. Hussainara
Khatoon(1) v. Home Secretary, State of
Bihar14.

(7) The right against handcuffing. Prem
Shankar Shukla v. Delhi Admn.15
(8) The right against delayed execution. T.
V. Vatheeswaran v. State of
T. N. 16
(9) The right against custodial violence.
Sheela Barse v. State of Maharashtral7.
(10) The right against public hanging. A.G.
of India v. Lachma Devil'.

(11) Doctor's assistance. Paramanand Katra
v. Union of India19.

(12) Shelter. Shantistar Builders v. N.K.
Totame2O.

27. The aforesaid is enough to state that Article 21 has
enough of positive content in it. As to why the rights
mentioned above have been held covered by Article 21 need
not be gone into, except stating that the originating idea
in this regard is the view expressed by Field, J. in Munn v.
IllinoiS21 in which it was held that the term 'life' (as
appearing in the 5th and 14th amendments to the United
States Constitution) means something more than 'mere animal
existence'. This view was accepted by a Constitution Bench
of this Court in Sunil Batra v. Delhi Admn.22 (SCC paras 55
and 226 : AIR paras 56 and 226), to which further leaves
were added in Board of Trustees of the Port of Bombay v.
Dilipkumar Raghavendranath Nadkami23 (SCC para 13 : AIR para

28. It would be relevant to note the decision in State of
H.P. v. Umed Ram Sharma26. It was observed there in
paragraph 11 that the right to life embraces not only
physical existence but the quality of life as understood in
its richness and fullness by the ambit of the Constitution;
and for residents of hilly areas access to road was held to
be access to life itself, and so necessity of road
communication in a reasonable condition was held to be a
part of constitutional imperatives, because of which the
direction given by the Himachal Pradesh High Court to build
road in the hilly areas to enable its residents to earn
livelihood was upheld. What can be more positive and
kicking?

29. We may also refer to the article of Dr M. Indira and Dr
Alka Dhal under the caption "Meaning of Life, Suffering and
Death" as read in the International Conference on Health
Policy, Ethics and Human Values held at New Delhi in 1986.
This is what the learned authors stated about life in their
article:

Life is not mere living but living in health.
Health is not the absence of illness but a
glowing vitality the feeling of wholeness
with a capacity for continuous intellectual
and spiritual growth. Physical, social,
spiritual and psychological well-being are
intrinsically interwoven into the fabric of
life. According to Indian philosophy that
which is born must die. Death is the only
certain thing in life."

30. May it be said that in C.E.S.C. Ltd. v. Subhash Chandra
Bose27 it has been opined by Ramaswamy, J. (who is, of
course, a minority Judge) that physical and mental health
have to be treated as integral part of right to life,
because without good health the civil and political rights
assured by our Constitution cannot be enjoyed.
(2) Has a person residing in India right to die?

31. If a person has a right to live, question is whether he
has right not to live. The Bombay High Court stated in
paragraph 10 of its judgment that as all the fundamental
rights are to be read together, as held in R.C. Cooper v.
Union of India6 what is true of one fundamental right is
also true of another fundamental right. It was then stated
that it is not, and cannot be, seriously disputed that
fundamental rights have their positive as well as negative
aspects. For example, freedom of speech and expression
includes freedom not to speak. Similarly, the freedom of
association and movement includes freedom not to join any
association or move anywhere. So too, freedom of business
includes freedom not to do business. It was, therefore,
stated that
26 (1986) 2 SCC 68: AIR 1986 SC 847
27 (1992) 1 SCC 441 :1992 SCC (L&S) 313
410
logically it must follow that the right to live will include
right not to live, i.e., right to die or to terminate one's
life.

32. Two of the abovenamed critics of the Bombay judgment
have stated that the aforesaid analogy is "misplaced", which
could have arisen on account of superficial comparison
between the freedoms, ignoring the inherent difference
between one fundamental right and the other. It has been
argued that the negative aspect of the right to live would
mean the end or extinction of the positive aspect, and so,
it is not the suspension as such of the right as is in the
case of 'silence' or 'non-association' and 'no movement'.
It has also been stated that the right to life stands on
different footing from other rights as all other rights are
derivable from the right to live.

33. The aforesaid criticism is only partially correct
inasmuch as though the negative aspect may not be inferable
on the analogy of the rights conferred by different clauses
of Article 19, one may refuse to live, if his life be not
according to the person concerned worth living or if the
richness and fullness of life were not to demand living
further. One may rightly think that having achieved all
worldly pleasures or happiness, he has something to achieve
beyond this life. This desire for communion with God may
very rightly lead even a very healthy mind to think that he
would forego his right to live and would rather choose not
to live. In any case, a person cannot be forced to enjoy
right to life to his detriment, disadvantage or disliking.

34. From what has been stated above, it may not be
understood that according to us the right encompassed or
conferred by Article 21 can be waived. Need for this
observation has been felt because it has been held by a
Constitution Bench in Olga Tellis v. Bombay Municipal
Corpn.28 that a fundamental right cannot be waived. A
perusal of that judgment, however, shows that it dealt more
with the question of estoppel by conduct about which it can
be said that the same is a facet of waiver. In the present
cases, we are, however, not on the question of estoppel but
of not taking advantage of the right conferred by Article

21.

35. Keeping in view all the above, we state that right to
live of which Article 21 speaks of can be said to bring
in its trail the right not to live a forced life.

36. In this context, reference may be made to what Alan A.
Stone, while serving as Professor of Law and Psychiatry in
Harvard University stated in his 1987 Jonas Robitscher
Memorial Lecture in Law and Psychiatry, under the caption
"The Right to Die : New Problems for Law and Medicine and
Psychiatry". (This lecture has been printed at pp. 627 to
643 of Emory Law Journal, Vol. 37, 1988). One of the basic
theories of the lecture of Professor Stone was that right to
die inevitably leads to the right to commit suicide.
28 (1985) 3 SCC 545 : AIR 1986 SC 180
411
(3) Why is a law enacted? What object(s) it seeks to
serve?

37. Section 309 being a part of our enacted law, let it be
known as to why a law is framed or is required to be framed.
To put it differently, what objects are sought to be
achieved by framing laws. For our purpose it would be
enough if what has been stated by Shri M. Ruthnaswamy in
Chapters 5 and 6 of his book Legislation: Principles and
Practice (1st Edn., 1974) (the Chapter headings being
"Principles of Legislation in History" and "Contemporary
Principles of Legislation"), is noted. The learned author
has within a short compass brought home the different
principles which had held sway in different parts of the
world at different points of time. Ruthnaswamy starts in
Chapter 5 by saying that it is from the time of the
Renaissance and the Reformation when men, as a result of
these great revolutionary movements broke away from rule of
custom and tradition, that legislation began its career as
an instrument of social and political, and even religious,
change. The readers are then informed as to what Richard
Hooker (15541600) thought on the question of law Which,
according to him, has to be influenced by experience and
supported by reason.

38. The next important thinker of England after Hooker was
the famous Francis Bacon (1561-1626). In his Essays (the
most popular of his works) we find his views on legislators
and legislation. Bacon stood out for progress and utility
and was of the view that it was not good to try experiments
in legislation. As against Bacon there was Sir Edward Coke,
who was a defender of the rights of the Parliament. Mention
is then made about John Locke (1632-1704) according to whom
the laws made must respect the right to liberty and
property; and laws must be made for the good of the people.

39. Ruthnaswamy then takes the reader to France and
mentions about Montesquieu (1689-1755), who in his famous
Spirit of Laws published in 1748, which has been regarded as
a great classic of political and legal literature, rendered
immemorial service to legislation and legislatures. In this
monumental work, he insists that laws and legislation should
be in conformity with the spirit of the people, if its
traditions, its philosophy of life, even the physical
surroundings of the people, including the climate. The
journey is then to Germany, where Leibnitz (1646-1717), a
philosopher, mathematician and adviser of kings and princes
in Germany and Europe, took the view that greatness of law
is proved by the fact that great rulers were also great law-
givers. Names of Augustus, Constantine and Justinian are
mentioned in this regard. The German philosopher further
said that the law must serve morality, because what is
against morals is bad law.

40. Readers then find themselves in Italy and they are
acquainted with Beccaria (1739-1794), who through his
pamphlet under the title Delict and Crimes published in 1766
brought a revolution in the theory and practice of
punishment, because, according to him, punishment of crime
must be used only for the defence of the State and the
people and not for retribution and revenge which principles
were holding the field then.

41. As per sequence of time, the next writer to be
mentioned is Edmund Burke (1727-1797), who was a
parliamentarian, statesman and political
412
thinker. According to him the main essential of good laws
and legislation is that the same should be fit and
equitable, so that the legislature has a right to demand
obedience. He would say there are two fundamental
principles of legislation equity and utility.

42. Blackstone is a name which is immortal in the world of
legal jurisprudence. It is his Commentaries on the Laws of
England (1765) which has made him so. He emphasised on the
inviolability of common law, freedom of persons and
property. After Blackstone, came Bentham (17481832) and the
Utilitarians.

43. Ruthnaswamy has also acquainted the readers about the
views of Plato, Aristotle, Cicero and Thomas Aquinas, so
also what Voltaire (16941773) had to say. We do not propose
to burden this judgment with their views; but what was said
by Macaulay (1800-1859) has to be noted, because it is he
who had drafted our Penal Code. Macaulay believed in the
efficacy of law in improving people and their character. He
wrote:

"When a good system of law and police is
established, when justice is administered
cheaply and firmly, when idle technicalities
and unreasonable rules of evidence no longer
obstruct the search for truth, a great change
of the better may be expected which shall
produce a great effect on the national
character."

44. In Chapter 6 of the book, Runthnaswamy has stated that
after the principles of Benthamism and utilitarianism,
reason, utility and individual liberty had exhausted
themselves, humanitarianism occupied the field and it is
this principle which has seen the enactments of statutes
like Workmen's Compensation Act, Factories Act and various
other statutes dealing with public health, sanitation and
weaker sections.

45. We do not propose to dive further and would close this
discussion by referring to what was stated by Ihering (1818-
1892) in his "Geist Des Romisches Rechts" (The Spirit of
Roman Law), which has been accepted as a legal classic.
According to Ihering, law is a means to an end. He laid
down the following general principles of legislation:

"1. Laws should be known to be obeyed.

2. Laws should answer expectations.

3. Laws should be consistent with one
another.

4. Laws should serve the principle of
Utility.

5. Laws should be methodical.

6. Laws must be certain to be obeyed, must
not become a dead letter.

7. Laws are necessary to ward off the
danger of the operations of egoism or self-
interest, the ordinary motives of human
action.

8. Law and legislation must aim at justice
which is that which suits all.

9. Laws are interconnected "laws like human
beings lean on one another."

413

46. That humanitarianism is the throbbing principle of
legislation presently has also been highlighted by Kartar
Singh Mann in his article "Working of Legislatures in the
matter of Legislation" appearing at pp. 491 to 495 of the
Journal of Parliamentary Information, Vol. 33, 1987. What
has been stated by Mann at p. 493 is relevant for purpose
the same being:

"In the historical perspective, one can easily
appreciate the complexities and intricacies of
legislation which the present legislatures are
to face. Besides the ordinary laws which
safeguard the rights and liberties of the
individual, there are certain fundamental laws
which ordinary legislation may not change. In
countries like France, Germany and India which
are having their written Constitutions their
fundamental laws are embodied there itself.
The fundamental principles on which the
political life of the people is based are
individuality, equality and justice. After
securing the life and liberty of the State and
of the individual, laws and legislations take
on the task of serving and promoting the good
life of the State and the people. For good
life, morality is necessary and to maintain
morality legislation is a must. Legislation
is the framework which is required to be made
for good life."

47. What was opined by Ian Temy, Q.C., Director of Public
Prosecution in his article "Euthanasia Is it murder?" [as
printed at pp. 2 to 7 of Australian Journal of Forensic
Sciences, Vol. 21 (1), September 1988] is also relevant for
our purpose. That article was concluded at p. 7 in these
words:

"I have necessarily spoken about the law as it
is. There is nothing immutable about it. To
the extent it does not meet social needs and a
strong consensus emerges to that effect, the
law can and should be changed......

48. The aforesaid show that law has many promises to keep
including granting of so much of liberty as would not
jeopardise the interest of another or would affect him
adversely, i.e., allowing of stretching of arm up to that
point where the other fellow's nose does not begin. For
this purpose, law may have "miles to go". Then, law cannot
be cruel, which it would be because of what is being stated
later, if persons attempting suicide are treated as
criminals and are prosecuted to get them punished, whereas
what they need is psychiatric treatment, because suicide
basically is a "call for help", as stated by Dr (Mrs)
Dastoor, a Bombay Psychiatrist, who heads an Organisation
called "Suicide Prevent". May it be reminded that a law
which is cruel violates Article 21 of the Constitution, a
la, Deena v. Union of India29.

(4) Why is a particular act treated as crime? What acts
are so treated?

49. Earliest reference to the word "crime" dates back to
14th century when it conveyed to the mind something
reprehensible, wicked or base. Any conduct which a
sufficiently powerful section of any given community feels
29 (1983) 4 SCC 645 : 1983 SCC (Cri) 879: AIR 1983 SC 1155
414
to be destructive of its own interest, as endangering its
safety, stability or comfort is usually regarded as heinous
and it is sought to be repressed with severity and the
sovereign power is utilised to prevent the mischief or to
punish anyone who is guilty of it. Very often crimes are
creations of government policies and the Government in power
forbids a man to bring about results which are against its
policies.

50. In a way there is no distinction between crime and
tort, inasmuch as a tort harms an individual whereas a crime
is supposed to harm a society. But then, a society is made
of individuals, harm to an individual is ultimately harm to
society.

51. A crime presents these characteristics: (1) it is a
harm, brought about by human conduct which the sovereign
power in the State desires to prevent;

(2) among the measures of prevention selected is the threat
of punishment; and (3) legal proceedings of a special kind
are employed to decide whether the person accused did in
fact cause the harm, and is, according to law, to be held
legally punishable for doing so. (See pp. 1 to 5 of Kenny's
Outlines of Criminal Law, 19th Edn., for the above
propositions.)

52. Protection of society is the basic reason of treating
some acts as crime. Indeed it is one of the aims of
punishment. Where there is no feeling of security, there is
no true freedom. What is the effect of the same cannot be
described better than what was stated by Hobbes in
Leviathan, which is:

"There is no place for industry, because the
fruit thereof is uncertain; and consequently
no culture of the earth; no navigation nor use
of the commodities that may be imported by
sea; no commodious building; no instrument of
moving and removing such things as require
much forces; no knowledge of the face of the
earth; no account of time; no arts, no
letters; no society; and which is worst of all
continual fear and danger of violent death;
and the life of a solitary, poor, nasty,
brutish and short."

53. As constitutionality of Section 309 has been assailed
as being violative of Article 21 which protects life and
personal liberty, it would be in fitness of things to note
what J.S. Mill had to say about making an act relatable to
personal liberty punishable. This is what Mill had said in
this connection in his famous tract On Liberty :

"The object of this Essay is to assert one
very simple principle, as entitled to govern
absolutely the dealings of society with the
individual in the way of compulsion and
control, whether the means used be physical
force in the form of legal penalties or the
moral coercion of public opinion. That
principle is that the sole end for which
mankind are warranted individually or
collectively, in interfering with the liberty
of action of any of their number, is self-
protection. That the only purpose for which
power can be rightfully exercised over any
member of a civilised community, against his
will, is to prevent harm to others. His own
good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be
compelled to do or forbear because it will be
better for him to do so, because it will make
him happier, because, in the opinions of
415
others to do so would be wise, or even right.
These are good reasons for remonstrating with
him or reasoning with him, or persuading him,
or entreating him, but not for compelling him,
or visiting him with any evil in case he does
otherwise. To justify that, the conduct from
which it is desired to deter him must be
calculated to produce evil to someone else.
The only part of the conduct of anyone, for
which he is amenable to society is that which
concerns others. In the part which merely
concerns himself, his independence is, of
right, absolute. Over himself, over his own
body and mind, the individual is sovereign."
(emphasis supplied)

54. The very definition of 'crime' depends on the values of
a given society. To establish this what has been stated by
Justice Krishna Iyer in his book Perspectives in
Criminology, Law and Social Change (1980) at pp. 7 and 8 may
be noted:

"What is a sex crime in India may be
sweetheart virtue in Scandinavia. What is an
offence against property in a capitalist
society may be a lawful way of life in a
socialist society. What is permissible in an
affluent economy may be a pernicious vice in
an indigent community. Thus, criminologists
must have their feet all the time on terra
firma."

55. Not only this, crimes can also be created or abolished
with the passage of time, as stated at p. 7 of R.S. Cavan's
Criminology (2nd Edn.). This has been elucidated by the
author by stating that in democracy where individual opinion
can express itself freely through speaking, writing and
elections, public opinion becomes the final arbiter in
placing the opprobrium of crime upon a specific type of
behaviour and when a law is not accepted the police may
attempt to enforce it against public opinion, but gradually
the police yield to the pressure of public opinion, which
they perhaps share. The law may remain on the statute books
but be ignored by all. Whereas when the public opinion
supports the law, many pressures of an informal nature are
brought against the violators to aid and lessen the police
action.

(5) How can crimes be prevented ?

56. The aforesaid subject is too wide and cannot be
discussed meaningfully within the parameters available to us
in this judgment. The treatise on Crime and its Prevention
edited by Stephen Lewin, Editor, World Week Magazine, would
show how complicated the subject is. At p. 217 of the 3rd
printing (1973) mention has been made about seven steps for
combating a crime. We may not go into the details.
Sufficient to say that the steps relate to different
disciplines.

57. Professor Dr N.V. Paranjape, Professor and Head of the
Department of Postgraduate and Research in Law and Dean
Faculty of Law, Jabalpur University, in his book
Criminiology and Penology has something to say in Chapter VI
about causes of crime, knowledge of which is necessary to
combat and prevent the same. Dr Paranjape states that in
the absence of a single theory of crime-causation,
criminologists have offered different explanations to
justify their own theory as an explanation of delinquent
behaviour. There are, however, some writers who seem to be
convinced that
416
no single theory of crime can fully explain the causes of
crime. They therefore prefer a multiple approach to
criminal behaviour which suggests that crime is generated
not as a result of one solitary factor but as a consequence
of a combination of such factors.

58. Justice Krishna lyer also in his aforesaid book has
dealt with this aspect in Chapter 2 captioned "The Pathology
of Indian Criminology". In his usual inimitable style, he
has painted the crime scenario on a broad canvas and has
mentioned about various factors which lead to commission of
crimes.

59. Reference may also be made to the White Paper presented
to the Parliament by Her Majesty's Government in 1990 on the
subject of "Crime, Justice and Protecting the Public",
published as Cm. No. 965. The White Paper has summarised
main proposals as below:

"A coherent legislative framework for
sentencing with the severity of the punishment
matching the seriousness of the crime and a
sharper distinction in the way the courts deal
with violent and non-violent crimes;
New powers for the Crown Court to impose
longer sentences for violent and sexual
offences, if this is necessary to protect the
public from serious harm;

New powers for all courts to combine community
service and probation and to impose curfews on
offenders so that more offenders convicted of
property crimes can be punished in the
community;

Reducing the maximum penalties for theft and
burglary, except burglaries of people's homes,
which can be a very serious matter;
Requiring the courts to consider a report by
the probation service before giving a
custodial sentence and to give reasons for
imposing a custodial sentence, except for the
most serious offences;

Encouraging more use of financial penalties,
especially compensation to victims and fines
which take account of offenders' means;
Making the time actually served in prison
closer to the sentence ordered by the court,
replacing the present system of remission and
parole by new arrangements which ensure that
all prisoners serve at least half their
sentences in custody; prisoners serving
sentences of 4 years or more would not get
parole if this would put the public at risk;
New powers for the courts to return released
prisoners to custody up to the end of their
sentence, if they are convicted of a further
imprisonable offence;

All prisoners serving sentences of a year or
more to be supervised by the probation service
on release, with new national standards for
supervision;

Wider powers for the courts to make parents
take more responsibility for crimes committed
by their children;

417

More flexible powers for the courts to deal
with 16 and 17 year old offenders;
Changing the juvenile courts to youth courts,
to deal with defendants under the age of 18."

60. It would be of some interest in this connection to
point out that as late as 1991 a need was felt by the
British Government to issue a Royal Warrant for issuing a
commission to examine the effectiveness of the criminal
justice in England and Wales in securing the conviction of
those guilty of criminal offences and the acquittal of those
who were innocent. For this purpose, the Royal Warrant
wanted the commission to make its recommendation on various
aspects of the criminal justice. The commission submitted
its report in July 1993 and it contains recommendations
which number 352 and have been mentioned at pp. 188 and 219
of the Report issued by Her Majesty's Stationery Office.

61. The difficult task of crime prevention would not
therefore permit the solution to be put into a strait-
jacket; it has to be modulated and moulded as per time and
clime.

Effect of Punishment

62. The aforesaid is not enough for our purpose. We have
also to know as to whether infliction of punishment can be
said to have a direct relation with the reduction of
criminal propensity. It would be enough in this context to
state that it has been seriously doubted whether imposition
of even death sentence has been able to reduce the number of
murders. Bhagwati, J. as he then was, in his dissenting
judgment in the case of Bachan Singh v. State of Punjab30
has brought home well this aspect of the matter.

63. While on the question of sentencing it would be
rewarding to note that sentencing has been regarded as a
subtle art of healing, and the legal and political people
uninstructed in the humanist strategy of reformation, fail
even on first principles. Justice lyer in his aforesaid
book has further stated at p. 47 that it puzzles a Judge or
a Home Secretary to be told in Shavian paradox:

"If you are to punish a man retributively, you
must injure him. If you are to reform him,
you must improve him. And men are not
improved by injuries."

64. What was said by Victor Hugo in his Les
Miserables is instructive: "We shall look upon
crime as a disease. Evil will be treated in
charity instead of anger. The change will be
simple and sublime. The cross shall replace
the scaffold, reason is on our side, feeling
is on our side and experiment is on our side."

65. This is not all. It would be wrong to think that a
person attempting to commit suicide does not get punished.
He does. The agony undergone by him and the ignominy to be
undergone is definitely a punishment, though not a corporal
punishment; but then, Section 309 has provided for a
sentence
30 (1982) 3 SCC 24: 1982 SCC (Cri) 535 : AIR 1982 SC 1325
418
of fine also. Agony and ignominy undergone would be far
more painful and deterrent than a fine which too may not
come to be realised if the person concerned were to be
released on probation.

(6) Why is suicide committed?

66. "Suicide, the intentional taking of
one's life, has probably been a part of human
behaviour since pre-history. Many ancient
texts including the Bible, the Koran and the
Rig Veda, mention suicide. Because the act of
self-destruction represents an attack on some
of our presumptions that life is to be lived
and death feared responses to suicide have
involved a variety of emotionally-charged
attitudes. These have ranged from approbation
accorded to it by the ancient Greek stoics to,
more typically, the fear and superstitution
that led 18th century Europeans to drive
stakes through the hearts of those who had
committed suicide."

[Encyclopaedia of Crime and Justice (1 983),
Vol. 4, p. 5 20]
The change in social thinking in this regard can be best
illustrated by the view taken by the conservative English
society where to start with suicide itself was regarded as a
felony requiring burial in a public highway, followed by
forfeiture of all the properties of the deceased to the
Crown. Presently, the Suicide Act, 1961 does not even
regard attempt to suicide as an offence.

67. Various social forces like the economy, religion and
socioeconomic status are responsible for suicides. There
are various theories of suicide, to wit, sociological,
psychological, biochemical and environmental (Ibid, pp.
1523-24).

68. The causes of suicides are many and varying inasmuch as
some owe their origin to sentiments of exasperation, fury,
frustration and revolution; some are the result of feeling
of burden, torture, and sadness. Some are caused by loss of
employment, reversal of fortune, misery due to illness,
family trouble and thwarted love. Sometimes killing is in
opposition to society and sometimes in opposition to
particular persons. This happens when the person committing
suicide nurses a feeling of unjust treatment, maltreatment
and cruelty. [See the Causes of Suicide by Maurice Halbwacks
(translated by Harold Goldblatt).] The Bombay judgment has
mentioned many causes in paragraph 12 of its judgment which
have been noted in paragraph 15 above. The same may not be
repeated.

(7) Who commits suicide? Secularisation of suicide.

69. Suicide knows no barriers of race, religion, caste, age
or sex. In a study undertaken in United States, to which
reference has been made at p. 14 of Suicidology:
Contemporary Developments by E.S. Scheneidman, (1976), it
was found that both Roman Catholics and Protestants were
equally susceptible to commission of suicide. It is because
of this that it has been felt in the United States that
there is "secularisation of suicide". In our country also
Hindus, Muslims, Sikhs, Christians, Buddhists, Jains and
Parsis are known to have been committing or attempting
suicides. Though there has been no particular study as to
the religious faith of the persons committing
419
suicide or attempting to commit suicide, it can safely be
stated that there is "secularisation of suicide" in our
country also.

70. While on the question "Who commits suicide?", it would
be relevant to state that there has been great increase in
the number of commission of suicides. In his aforementioned
article, Shri Faizan Mustafa pointed out that the number of
suicides by the youths below 18 in 1986 was 7545. But out
of about 60,000 persons who committed suicide in 1990 nearly
half of them were aged between 18 to 25, which is generally
considered to be the best period of a person's life.

71. As per the report published in Indian Express of 31-10-
1984, in Ahmedabad city 5 suicide cases had occurred during
24 hours immediately preceding 30th October. In a write-up
as published in India Today of 15-101984 under the caption
"Bangalore: The Suicide City", it has been stated that
Bangalore which had earned the title of "Boom City" nearly a
year ago, could more appropriately be described as "Doom
City" by last month. The figures collected for the first
half of the year shocked the members of the State
Legislature because of incredible 664 suicidal deaths over a
six-month period, which was higher than the total combined
figures for Calcutta and Hyderabad in the last three years.
(8) How suicide-prone persons should be dealt with?

72. We now come to the question relating to the treatment
to be given to the persons who attempt to commit suicide.
Do they deserve prosecution because they had failed? is the
all important question. The answer has to be a bold NO.
The reasons are not far to seek. Let us illustrate this
first by referring to the case of those 20 persons who
committed suicide in Tamil Nadu distressed as they felt
because of prolonged illness of Chief Minister, M.G.
Ramachandran. That this had happened was published in the
Indian Express of 28-10-1984. Question is whether these
persons would have deserved prosecution had they failed in
their attempt? The answer has to be that there can be no
justification to prosecute such sacrificers of their lives.
Similar approach has to be adopted towards students who jump
into wells after having failed in examinations, but survive.
The approach cannot be different qua those girls/boys who
resent arranged marriages and prefer to die, but ultimately
fail.

73. Let us come to the case of a woman who commits suicide
because she had been raped. Would it not be adding
insult to injury, and insult manifold, to require such a
woman in case of her survival, to face the ignominy of
undergoing an open trial during the course of which the
sexual violence committed on her which earlier might have
been known only to a few, would become widely known, making
the life of the victim still more intolerable. Is it not
cruel to prosecute such a person?

74. We would go further and state that attempt to commit
suicide by such a woman is not, cannot be, a crime. What is
crime in such a case is to prosecute her with a view to get
her punished. It is entirely a different matter that at the
end of the trial, the court may impose a token fine or even
release
420
the convict on probation. That would not take care of the
mental torture and torment which the woman would have
undergone during the course of the trial. Such a
prosecution is, therefore, par excellence persecution. And
why persecute the already tormented woman? Have we become
soulless? We think not. What is required is to reach the
soul to stir it to make it cease to be cruel. Let us
humanise our laws. It is never late to do so.

75. Suicide, as has already been noted, is a psychiatric
problem and not a manifestation of criminal instinct. We
are in agreement with Dr (Mrs) Dastoor that suicide is
really a "call for help" to which we shall add that there is
no "call for punishment" in it. Mention may also be made
about what was observed in "The Attitudes of Society towards
Suicide", a xerox copy of which is a part of written
submissions filed on behalf of Respondent 2 (State of
Orissa) in W.P. No. (Crl.) 419 of 1987. It has been stated
in this article at p. 9 that shortly after passing of the
Suicide Act, 1961 (in England), the Ministry of Health
issued recommendation advising all doctors and authorities
that attempted suicide was to be regarded as a "medical and
social problem", as to which it was stated that the same was
"more in keeping with present-day knowledge and sentiment
than the purely moralistic and punitive reaction expressed
in the old law".

76. So what is needed to take care of suicide-prone persons
are soft words and wise counselling (of a psychiatrist) and
not stony dealing by a jailor following harsh treatment
meted out by a heartless prosecutor.

(9) Is suicide a non-religious act?

77. Every individual enjoys freedom of religion under our
Constitution, vide Article 25. In a paper which Shri G.P.
Tripathi had presented at the World Congress on Law and
Medicine held at New Delhi under the caption "Right to die",
he stated that every man lives to accomplish four objectives
of life: (1) Dharma (religion and moral virtues); (2) Artha
(wealth); (3) Kama (love or desire); and (4) Moksha
(spiritual enjoyment). All these objectives were said to be
earthly, whereas others are to be accomplished beyond life.
When the earthly objectives are complete, religion would
require a person not to cling to the body. Shri Tripathi
stated that a man has moral right to terminate his life,
because death is simply changing the old body into a new one
by the process known as Kayakalp, a therapy for
rejuvenation.

78. Insofar as Christians are concerned, reference may be
made to what Pope John Paul 11 stated when he gave his
approval to the document issued by the sacred congregation
stating:

when inevitably death is imminent in spite of
the means used, it is permitted in conscience
to take decision to refuse forms of treatment
that would only secure precarious and
burdensome prolongation of life, so long as
the normal care due to sick person in similar
cases is not interrupted......

79. In the Encyclopaedia of Religion, Vol. 8 (1987),
mention has been made at pp. 541 to 547 as to how "life" has
been understood by different
421
religions. After discussing the subject as understood by
the primitive societies, Judaism, Christianity, Hinduism and
Buddhism, the discussion has been included by stating that
the very act of posing the question "What is life?" produces
an initial sense of bafflement and perplexity. It has been
stated thereafter that a precise, distinct and universally
acceptable concept does not accompany the use of the word
"life"; and that posing of the above query brings in its
wake a sense that life is an "inexhaustible storehouse of
mysteries, a realm of endlessly self-perpetuating novelties,
in which the solution to any given problem gives rise to a
plethora of other questions that beckon the always restless,
never contended mind of Homo Sapiens to seek further for
additional answers or, at least, to search out more
intellectually refined, morally elevating, and spiritually
salutary ways of pursuing the quest". So, life does not end
in this world and the quest continues, may be after the end
of this life. Therefore, one who takes life may not really
be taken to have put an end to his whole life. There is
thus nothing against religion in what he does.

80. Insofar as our country is concerned, mythology says
Lord Rama and his brothers took Jalasamadhi in river Saryu
near Ayodhya; ancient history says Buddha and Mahavira
achieved death by seeking it; modem history of Independence
says about various fasts unto death undertaken by no less a
person than Father of the Nation, whose spiritual disciple
Vinoba Bhave met his end only recently by going on fast,
from which act (of suicide) even as strong a Prime Minister
as Indira Gandhi could not dissuade the Acharya.

81. The aforesaid persons were our religious and spiritual
leaders; they are eulogised and worshipped. Even the
allegation against them that they indulged in a non-
religious act, would be taken as an act of sacrilege. So,
where is non-religiosity in the act of suicide so far as our
social ethos is concerned? And it is this ethos, this
social mores, which our law has to reflect and respect.
(10) Is suicide immoral?

82. Law and morals often intersect and there can be no
doubt that historically at least law and morals were closely
related and that in many areas the law continues to look
upon its function as the enforcement of morals, the
reinforcement of moral standards in society, and the
punishment of moral depravity, as noted at p. 19 of Burton
M. Leiser's Liberty, Justice and Morals (1973). The
Constitution of United States contains a number of
provisions embodying moral judgments, one of which is
prohibition against 'cruel and unusual punishment". As to
due process clause, it was stated by Justice Frankfurter in
Solesbee v. Balkcom31 that it "embodies a system of rights
based on moral principles ... which comports with the
deepest notions of what is fair and right and just".

83. If, however, the law be unjust would a person not be
entitled to Hisobey it? The civil disobedience movement
organised by leaders like Gandhiji shows that there can be
clash of law and morality, which can be on
94LEd 604:339US9(1949)
422
the battlefield of man's conscience. It is this which
agitated the mind of Socrates when he was in jail. He was
advised to escape and was assured that it would be a safe
escape. He refused saying that having devoted his life to
teach the importance of doing justice and respecting the
laws, it would be rank hypocrisy for him to violate his
principles when the laws had been turned against him. Being
of this view, instead of breaking law, he took poison. But
then, at times an individual would be between two horns of
dilemma when confronted with the question of obeying an
unjust and pernicious law. The theories of Divine Law and
Natural Law were evolved to take care of this dilemma and
French Declaration of Rights of Men and American Declaration
of Independence are based on these laws.

84. In the aforesaid work of Burton, this aspect of the
matter has been concluded at p. 353 by stating as below:

"It is right to be law-abiding. But there may
be times when it is not wrong to break the
law. There are no easy rules or recipes to
guide us in making our choices. Some people,
who allow themselves to be governed by
expediency and narrow self-interest when they
choose to disobey traffic, are indignant when
their neighbours violate laws because their
religious and moral convictions do not permit
them to do otherwise. Anarchy is a terrible
thing. It is all that Hobbes said it was. It
is more likely to come from motives like those
of the speeder, the drunken driver, and the
one who cheats on his income tax, rather than
from those
of men like Gandhi, King (meaning Martin
Luther King)......

(emphasis supplied)

85. Though the question of morality normally arises with
laws relating to sex and acts evincing moral depravity like
cheating, but as the question of birth and death has also
moral significance, as opined by Mary Warnock, whose views
in this regard have been noted at p. 86 of Simon Lee's Laws
and Morals (1986), we may briefly advert to the moral aspect
as well relating to suicide. It is the sanctity of human
life which is said to be defaced when one commits suicide
and the question of morality, therefore, arises. We would
have occasion later to refer to the enactment of Suicide
Act, 1961 by the British Parliament, when the related Bill
was taken up for consideration in the House of Lords, the
Lord Bishop of Carlisle had raised objection on the ground
of morality by saying that sanctity of human life was being
destroyed. But the Bill was passed, nonetheless.

86. A reference to Simon Lee's above work shows there is no
unanimity regarding the moral object which law should try to
achieve. Simon Lee has mentioned at p. 90 about three
theories prevalent in England in this regard, one of whose
propounder was Mill, according to whom "harm-to-others" is
what ought to be prevented by law. Devlin would have liked
that law should aim to establish minimum and not maximum
standards of behaviour showing respect for tolerance and
privacy. Hart's approach was that only "the universal
values" merited legal support and not those which fluctuate
according to fashion, unless harm is caused to others. [See
H.L.P. Hart's Law, Liberty and Morality (1982) also
particularly pp. 30 and 3 1.]
423

87. It would be apposite, while on the question of
morality, to refer to the Constitution Bench decision of
this Court in Ranjit D. Udeshi v. State of Maharashtra32 in
which the question examined was whether the novel of D.H.
Lawrence Lady Chatterley's Lover could be regarded as
"obscene" within the meaning of Section 292 of the Penal
Code. The Constitution Bench speaking through Hidayatullah,
J., as he then was, stated in paragraph 9 that the question
of obscenity depends upon the mores of the people and it is
always a question of degree and where the line is to be
drawn. After going through the case law and what Lawrence
might have had in mind in writing the book, the Bench
unanimously came to the conclusion that Lawrence was
probably unfolding his philosophy of life and the urges of
the unconscious, which caused no loss to the society if
there was a message in the book. After examining the
contents of the book from this standard it was held it
contained no obscenity. The importance of this decision for
our purpose is that the aforesaid book was regarded as
morally objectionable at one point of time even in England,
where moral standard relating to sex is on a lower key
compared to ours.

88. The above shows that morality has no defined contours
and it would be too hazardous to make a bold and bald
statement that commission of suicide is per se an immoral
act. If human beings can be treated inhumanly, as a very
large segment of our population is, which in a significant
measure may be due to wrong (immoral) acts of others, charge
of immorality cannot be, and in any case should not be,
levied, if such human beings or like of them, feel and think
that it would be better to end the wretched life instead of
allowing further humiliation or torture. Those who demand
virtue must do virtue and should see that others too do the
same.

(11) Does suicide produce adverse sociological effects?

89. One of the points raised against suicide is that the
person who had so done might have been the sole bread-earner
of the family, say a husband, a father, because of whose
death the entire family might have been left in lurch or
doldrums, bringing in its wake untold miseries to the
members of his family. It is therefore stated that suicide
has adverse effects on the social setup. No doubt, the
effects of suicide in such cases are quite hurting; but
then, it is a matter of extreme doubt whether by booking a
person who had attempted to commit suicide to trial,
suicides can be taken care of. Even imposition of death
sentences has not been able to take care of commission of
murders, as mentioned earlier.

90. Further, the aforesaid adverse sociological effects are
caused by the death of the person concerned, and not by one
who had tried to commit suicide. Indeed, those who fail in
their attempts become available to be more or less as useful
to the family as they were. So the person to be punished is
one who had committed suicide; but, he is beyond the reach
of law and cannot be punished. This can provide no reason
to punish a person who should not be punished.
32 AIR 1965 SC 881 : (1965) 1 SCR 65 : (1965) 2 Cri LJ 8
424
(12) Is suicide against public policy?

91. The basic argument of Shri Sharma, learned counsel for
the Union of India, was that allowing persons to commit
suicide would be against public policy. Though which public
policy would be so affected was not spelt out by the learned
counsel, we presume that the public policy to be so
jeopardised is one which requires preservation of human
life. One of the objects of punishment to be inflicted when
an offence is committed is protection of society from the
depredations of dangerous persons, as mentioned at p. 198 of
Burton M. Leiser's Liberty, Justice and Morals. But insofar
as suicide is concerned, this object does not get attracted
because there is no question of protection of the society
from depredation of dangerous persons, who by the very
nature of things have to be those who cause harm to others
and not to themselves. Of course, we would concede that one
of the interests of the State has to be preservation of
human life.

92. The concept of public policy is, however, illusive,
varying and uncertain. It has also been described as
"untrustworthy guide", "unruly horse" etc. The leading
judgment describing the doctrine of public policy has been
accepted to be that of Parke, B. in Egerton v. Brownlow 33
in which it was stated as below at p. 123, as quoted in
paragraph 22 of Gherulal Parakh v. Mahadeodas Maiya34:

"Public policy' is a vague and unsatisfactory
term, and calculated to lead to uncertainty
and error, when applied to the decision of
legal rights; it is capable of being
understood in different senses; it may, and
does, in its ordinary sense, mean 'political
expedience' or that which is best for the
common good of the community; and in that
sense there may be every variety of opinion,
according to education habits, talents and
dispositions of each person, who is to decide
whether an act is against public policy or
not. To allow this to be a ground of judicial
decision, would lead to the greatest
uncertainty and confusion. It is the province
of the statesman and not the lawyer, to
discuss, and of the Legislature to determine
what is best for the public good and to
provide for it by proper enactments. It is
the province of the judge to expound the law
only; the written from the statutes; the
unwritten or common law from the decisions of
our predecessors and of our existing courts,
from text writers of acknowledged authority,
and upon the principles to be clearly deduced
from them by sound reason and just inference;
not to speculate upon what is the best, in his
opinion, for the advantage of the community.

Some of these decisions may have no doubt bee
n
founded upon the prevailing and just opinions
of the public good; for instance, the
illegality of covenants in restraint of
marriage or trade. They have become a part of
the recognised law, and we are therefore bound
by them, but we are not thereby authorised to
establish as law everything
33 (1853) 4 HLC 121
34 AIR 1959 SC 781 : 1959 Supp (2) SCR 406
425
which we may think for the public good, and
prohibit everything which we think otherwise."

93. In the aforesaid case a three-Judge Bench of this Court
summarised the doctrine of public policy by stating at p.
795 that public policy or policy of law is an illusive
concept; it has been described as "untrustworthy guide",
"variable quality", "uncertain one", "unruly horse" etc.

94. Different High Courts of the country have had also
occasion to express their views on this concept in their
judgments in Bhagwant Genuji Girme v. Gangabisan Ramgopal35;
Mafizuddin Khan Choudhury v. Habibuddin Shekh36; Kolaparti
Venkatareddi v. Kolaparti Peda Venkatachalam37 and
Ratanchand Hirachand v. Askar Nawaz Jung38. In Kolaparti
case37 it was stated that the term public policy is not
capable of a precise definition and whatever tends to
injustice of operation, restraint of liberty, commerce and
natural or legal rights; whatever tends to the obstruction
of justice or to the violation of a statute and whatever is
against good morals can be said to be against public policy.
These decisions have also pointed out that the concept of
public policy is capable of expansion and modification. In
Ratanchand case38 a Bench of Andhra Pradesh High Court
speaking through Chinnappa Reddy, J. as he then was, quoted
at p. 117 a significant passage from Professor Winfield,
"Essay on Public Policy in the English Common Law" (42
Harvard Law Review 76). The same is as below:

"Public policy is necessarily variable. It
may be variable not only from one century to
another, not only from one generation to
another but even in the same generation.
Further it may vary not merely with respect to
the particular topics which may be included in
it, but also with respect to the rules
relating to any one particular topic.... This
variability of public policy is a stone in the
edifice of the doctrine and not a missile to
be flung at it. Public policy would be almost
useless without it."

95. As to how the "unruly horse" of public policy
influenced English law has been narrated by W. Friedman in
his Legal Theory (5th Edn.) at p. 479 et seq in Part 111,
Section 2 titled as "Legal Theory, Public Policy and Legal
Evaluation". As to the description of public policy as
"unruly horse", it may be stated that there have been judges
not to shy away from unmanageable horses. Lord Denning is
one of them. What this noble judge stated in Enderby Town
Football Club Ltd. v. Football Association Ltd.39 at p. 606
is "With a good man in the saddle, the unruly horse can be
kept in control. It can take jump over obstacles." (See
para 93 of Central Inland Water Transport Corpn. Ltd. v.
Brojo Nath Ganguly40.) But how many judges can be anywhere
near Lord Denning ? He is sui generis.

96. The magnitude and complexity of what is or is not
public policy or can be a part of public policy, would be
apparent from bird's eye view of what has been stated
regarding this at pp. 454 to 539 of Words and Phrases
(Permanent Edn., Vol. 35, 1963). To bring home this a few
excerpts would be enough. It has been first stated under
the sub-heading "In general" as below at pp. 455 and 456:

" 'Public policy' imports something that is
uncertain and fluctuating, varying with the
changing economic needs, social customs, and
moral aspirations, of the people. Barwin v.
Reidy41.

'Public policy' is in its nature so uncertain
and fluctuating, varying with the habits and
fashions of the day, with the growth of
commerce and the usages of trade, that it is
difficult to determine its limits with any
degree of exactness. It has never been
defined by the courts, but has been let loose
and free from definition in the same manner as
fraud. Pendeleton v. Greever42.
'Public policy' is a term that is not always
easy to define and it may vary as the habits,
opinions and welfare of a people may vary, and
what may be the public policy of one State or
country may not be so in another. Franklin
Fire Ins. Co. V. Moll 43.

97. In the aforesaid work under the sub-heading "Government
by Constitution, laws or judicial decisions", the following
finds place at p. 481 under the further sub-heading "In
general":

"'Public policy' is a variable quantity and is
manifested by public acts, legislative and
judicial, and courts will not hold a contract
void. Draughton v. Fox Pelletir Corpn.44
In a judicial sense, public policy does not
mean simply sound policy, or good policy, but
it means the policy of a State established for
the public weal, either by law, by courts, or
general consent. Clough v. Gardiner45."

98. From the above, it can safely be said that it would be
an uninformed man in law who would say with any degree of
definiteness that commission of suicide is against public
policy; and, as such, a person attempting to commit it acts
against public policy.

(13) Does commission of suicide damage the monopolistic
power of the State to take life?

99. The aforesaid point is not required to be gone into
detail, because nobody can claim to have monopoly over a
human life. It is God alone who can claim such a power. If
a person takes his life, he is taking his own life, and not
the life of anybody else; and so, the argument that State's
41 307 P 2d 175, 181 : 62 N.M. 183
42 j 193 p. 885, 887, j 80 Ok 1, 35 : 17 ALR 317
43 58 NE 2nd 947, 950, 951': 115 Ind. App. 289
44 126 SW 2d 329, 333 : 174 Tenn 457
45 182 NYS 804, 806: III Mis. 244
427
monopolistic power of taking life is taken away by the
person who attempts to commit suicide has no legs to stand
on.

(14) Is apprehension of "constitutional cannibalism"
justified?

100. This is one of the criticisms which has been
advanced in one of the aforesaid articles relating to the
Bombay judgment2. This contention has been advanced because
if the negative aspect of right to life, i.e., to destroy it
can be read in Article 21, the State can "easily embark upon
a policy to encourage genocide on the plea that proper
management of resources are vital and necessary for the
upkeep of life with vigour and dignity in the wake of
geometrical progression of population growth". The critic
has stretched this argument so much to come to the
conclusion of "constitutional cannibalism" that we may
almost leave it unanswered, as there is a gulf of difference
between taking of one's own life and allowing the State to
go in for genocide. They are not only poles apart but miles
apart.

101. The Editor of Calcutta Weekly Notes in his
comments at pp. 37 to 40 [of (1986-87) 91 CWN (Journal
Section)] has observed that the distinction made by the
Bombay High Court between "suicide" and "euthanasia" appears
logically inconsistent. According to the Editor, the
rationale of the judgment would necessarily permit
euthanasia as legal. This comment may not be quite
incorrect, because in passive euthanasia, wherever it has
been accepted as legally permissible, consent of the
patient, if he be in a sound mental condition, has been
regarded as one of the prerequisites. So, if one could
legally commit suicide, he could also give consent for his
being allowed to die. But then, the legal and other
questions relatable to euthanasia are in many ways different
from those raised by suicide. One would, therefore, be
right in making a distinction logically and in principle
between suicide and euthanasia, though it may be that if
suicide is held to be legal, the persons pleading for legal
acceptance of passive euthanasia would have a winning point.
For the cases at hand, we would remain content by saying
that the justification for allowing persons to commit
suicide is not required to be played down or cut down
because of any encouragement to persons pleading for
legalisation of mercy-killing.

102. May we hasten to observe that as regards the persons
aiding and/or abetting suicide, the law can be entirely
different, as indeed it is even under the Suicide Act, 1961
of England. Bombay judgment2 has rightly made this
distinction. It is for this reason that the apprehension
raised by the Andhra Pradesh High Court in its judgment in
Jagadeeswar3 does not seem to be justified. We do not agree
with the view of the Andhra Pradesh High Court in that if
Section 309 were to be held bad, it is highly doubtful
whether Section 306 could survive, as self-killing is
conceptually different from abetting others to kill
themselves. They stand on different footing, because in one
case a person takes his own life, and in the other a third
person is abetted to take his life.

428

(15)Recommendation of the Law Commission of India and
follow-up steps taken, if any.

103.The Law Commission of India in its 42nd Report (1971)
recommended repeal of Section 309 being of the view that
this penal provision is "harsh and unjustifiable" (see
paragraph 16.33 of the Report). In taking this view, the
Law Commission quoted the following observations made by H.
Romilly Fedden in Suicide (London, 1938) at page 42:

"It seems a monstrous procedure to inflict
further suffering on even a single individual
who has already found life so unbearable, his
chances of happiness so slender, that he has
been willing to face pain and death in order
to cease living. That those for whom life is
altogether bitter should be subjected to
further bitterness and degradation seems
perverse legislation."

104.After the aforesaid Law Commission's Report became
available, the recommendation was accepted by the Government
of India and the Indian Penal Code (Amendment) Bill, 1972
was introduced in the Rajya Sabha to repeal Section 309.
The Bill was referred to a Joint Committee of both the
Houses and after receipt of its report, the Bill was passed
with some changes by the Rajya Sabha in November 1978. The
Bill so passed was pending in the Sixth Lok Sabha when it
was dissolved in 1979, because of which the Bill lapsed.

105. In the counter-affidavit filed by the Union of India in
Writ Petition (Crl.) No. 409 of 1986, it has been further
stated that a proposal for reintroducing legislation in
Parliament on the lines of the lapsed Bill is under
consideration. It has been admitted in this affidavit that
Section 309 is harsh, and so, the intention of the
Government is more or less to repeal that section.
(16)Global view: What is the legal position in other leading
countries of the world regarding the matter at hand?

106.We propose to refer to two leading countries only in
this regard they being United Kingdom and United States of
America. We have selected them because the first is a
conservative country and the second a radical; the first is
first in point of time as regards democratic functioning and
the second is being regarded as a serious human rights'
protagonist. At English Common Law suicide was taken as
felony as much so that a person who had met his end after
committing suicide was not allowed Christian burial, but
would have to be so done in a public highway. Not only
this, the property of the person concerned used to get
forfeited to the Crown. [See pages 290 to 207 of Law and
Morality edited by Louis Bloom Cooper and Gravin Drewry
(1976), which pages also contain the speeches made by the
Lord Bishop of Carlisle and Lord Denning in the House of
Lords during second reading of The Suicide Bill, 1961.]

107.Times changed, notions changed and presently, even
attempt to commit suicide is not a criminal offence, as
would appear from Suicide Act, 1961. Though Section 1 of
this Act has only stated that the "rule of law whereby it is
a crime for a person to commit suicide is hereby abrogated",
it
429
has been made clear in the second para of 'General Note'
below this section, as finding place in the xerox copy of
this Act enclosed with the written submissions filed on
behalf of the State of Orissa, Respondent 2 in Writ Petition
(Crl.) No. 419 of 1987 that attempted suicide is not a
crime. This note reads as below:

"Attempted Suicide
An attempt to commit suicide was a common law
misdemeanour. Section 1 does not specifically
say that attempted suicide is no longer a
crime, but it must follow irresistibly from
the fact that the completed act is no longer a
crime......

In the United States by early 1970's comparatively small
number of States (9) listed suicide as a crime, although no
penalties (such as mutilation of bodies or forfeiture of
estates) were exacted. In such States suicide attempts were
either felonies or misdemeanours and could result in ail
sentences, although such laws were selectively or
indifferently enforced. Two of such States repealed such
laws, stating in effect that although suicide is "a grave
social wrong", there is no way to punish it. Eighteen
States had no laws against either suicide or suicide
attempts, but they specified that to aid, advise or
encourage another person to commit suicide is a felony. In
more than 20 other States, there were no penal statutes
referring to suicide. [See pp. 16 and 17 of Suicidology:
Contemporary Developments by E.S. Scheneidman (1976).]

108. The latest American position has been mentioned as
below at p. 348 of Columbia Law Review, 1986:

"Suicide is not a crime under the statutes of
any State in the United States. Nor does any
State, by statute, make attempting suicide a
crime. In twenty-two States and three United
States territories, however, assisting suicide
is a crime. If an assistant participates
affirmatively in the suicide, for instance by
pulling the trigger or administering a fatal
dose of drugs, courts agree that the
appropriate charge is murder."

Conclusion

109. On the basis of what has been held and noted above, we
state that Section 309 of the Penal Code deserves to be
effaced from the statute book to humanise our penal laws.
It is a cruel and irrational provision, and it may result in
punishing a person again (doubly) who has suffered agony and
would be undergoing ignominy because of his failure to
commit suicide. Then an act of suicide cannot be said to be
against religion, morality or public policy, and an act of
attempted suicide has no baneful effect on society.
Further, suicide or attempt to commit it causes no harm to
others, because of which State's interference with the
personal liberty of the persons concerned is not called for.

110. We, therefore, hold that Section 309 violates
Article 21, and so, it is void. May it be said that the
view taken by us would advance not only the cause of
humanisation, which is a need of the day, but of
globalisation also, as by effacing Section 309, we would be
attuning this part of our criminal law to the global
wavelength.

430

111. The writ petitions stand allowed by declaring
Section 309 of the Penal Code as unconstitutional and hence
void. The proceedings in GR Case No. 177 of 1984 (State v.
Nagbhushan Patnaik) pending in the Court of Sub-Judge,
Gunpur in the District of Koraput, Orissa stands quashed.

112. Before parting, we should like to observe that what we
have sought to do through this judgment may be said to be an
attempt to "search for the social dynamics of criminal law,
the functional theory of sentencing and the therapeutic
reach of punitive arts, to catch up with social sciences
relevant to criminal justice and to link up prison
jurisprudence with constitutional roots", of which Justice
Krishna Iyer has mentioned in his preface (styled Krishna
Iyerishly as 'A Word in Confidence') to his aforementioned
book. Whether we have succeeded or not; and, if so, to what
extent is for others to judge.

113. 1 desire to place on record (though it would sound
unusual to some and may be to many) my appreciation for the
assistance I had received from Shri Satish Chandra, Joint
Registrar (Library) of the Court, in supplying me promptly
very useful and varied materials for preparing this
judgment, as and how required by me.